TURNER v. SCHRIVER

United States District Court, E.D. New York

July 21, 2004.

CLINTON TURNER Petitioner,
v.
SUNNY L. SCHRIVER, Respondent.

The opinion of the court was delivered by: NINA GERSHON, District Judge

ORDER

Petitioner brings this petition for a writ of habeas corpus
under 28 U.S.C. § 2254, challenging his 1988 conviction, after a
jury trial, in the New York Supreme Court, Queens County
(Sherman, J.), of Robbery in the First Degree in violation of
N.Y. Penal Law § 160.15; Robbery in the Third Degree in violation
of N.Y. Penal Law § 160.05; and Grand Larceny in the Fourth
Degree in violation of N.Y. Penal Law § 155.30. Petitioner was
sentenced as a second felony offender to an indeterminate term of
imprisonment of ten to twenty years on the Robbery in the First
Degree count, and concurrent terms of two to four years on the
Robbery in the Third Degree and Grand Larceny counts. Petitioner
has completed his term of imprisonment.

At petitioner's trial for the robbery of William Clarke, the
prosecutor called three witnesses: Police officers John Cardo and
Paul Krien, and Mr. William Clarke.

Officer Cardo testified that, at around five a.m. on October
17, 1987, he responded to a radio call of an assault in progress and found four individuals arguing
over a Toyota that was parked in front of a Dunkin' Donuts on
College Point Avenue in Brooklyn, NY. Three of the individuals
were black males and one was a white male. The white male, Mr.
Clarke, told Officer Cardo that, as he was walking to his car, he
was approached by four individuals, the three black males who
were present and one person who fled after robbing him. The
robber was carrying a knife and wearing black pants, a shirt, and
had a Ninja mask over his face. He was approximately six feet
tall and around thirty years old. Mr. Clarke gave the individual
with the knife his wallet, which contained approximately $1500 in
cash. After the man took his wallet, he pulled the Ninja mask off
of his head which allowed Mr. Clarke to see his face. The three
black males were placed under arrest and were subsequently
transported to the 109th precinct. Officer Cardo wrote the
name "Screwgie" on the complaint report as information that
pertained to the robber. Mr. Clarke's appearance was normal, and
he did not appear to be under the influence of any drugs or
alcohol at the time he gave his statement. Officer Cardo did not
run a fingerprint check on Mr. Clarke or search him.

Officer Paul Krien testified that he was assigned to the
Robbery Investigation Unit at the 109th precinct. In
connection with that assignment, he knew that the nickname
"Screwgie" belonged to petitioner. On the day of the robbery,
after reading the complaint report, he called Mr. Clarke and got
a description of the perpetrator. In subsequent conversations,
Mr. Clarke told Officer Krien that he was robbed at about 5:15 in
the morning after he found some people breaking into his car and
that he chased one of the individuals into one of the project
buildings and confronted him. The individual pulled out a knife
and wanted Mr. Clarke's wallet and money. Mr. Clarke kicked the
individual, at which time the mask he was wearing came off. Mr.
Clarke left the scene because there were too many other people
there. Mr. Clarke identified petitioner at the line-up at the
police station. On crossexamination, Officer Krein stated that, in his first interview with Mr.
Clarke, at his residence, Mr. Clarke did not mention that he was
approached by four black individuals when he was returning to his
car that evening or that one of them pulled a knife on him. Nor
did he tell Officer Krien that he was robbed. Mr. Clarke told
Officer Krien only that, when he approached his car, he saw three
individuals around it and one inside. The person inside was the
person with the mask. The first time he saw the knife was after
he chased the individual with the mask, for approximately two to
three blocks, into one of the project buildings.

Mr. Clarke's testimony was as follows: On October 17, 1987, at
approximately 4:45 a.m., he stopped by the Candlewood Bar in
Brooklyn, New York. He was driving a Ford Mustang that he parked
in front of the Dunkin' Donuts on College Point Boulevard. He had
been at a birthday party earlier that night, but he had nothing
to drink at the party or at the bar. He does not drink or smoke.
The bar was closing, and he asked only if he could look around
for some friends he was supposed to meet earlier in the evening.

After he left the bar and was walking back to his car, he
noticed that one of the small rear windows seemed broken. As he
approached the car, he noticed someone going through the glove
compartment. The person got out of the car after Mr. Clarke saw
him, and Mr. Clarke chased him across the street and into the
housing projects. The individual, later identified as petitioner,
was black with short black hair and had on dark jeans and a dark
shirt. After Mr. Clarke chased petitioner into a crowded hallway,
petitioner stepped out from behind a pillar and began slashing at
him with a large butcher knife without a handle. Petitioner had
thrown a hood of some sort over his head at that point.
Petitioner grabbed a chain hooked to Mr. Clarke's pants and
attached to his wallet and said "give me your money." Petitioner
ripped the wallet from Mr. Clarke's back pocket and then told Mr.
Clarke to take off his pants. At that point, Mr. Clarke kicked petitioner
on his chest and the hood fell off. Mr. Clarke's wallet contained
a little less than $100, his driver's license, his social
security card and his check cashing card.

When he returned to his car, Mr. Clarke saw three individuals
in it who exited the car and then tried to run to a Toyota parked
across the street that also had broken windows. Mr. Clarke picked
up a pipe and chased the three individuals into the Dunkin'
Donuts, locked the door and called the police. When the police
arrived, Mr. Clarke told them that there had been four men and
that one of them had taken his wallet with a knife. Mr. Clarke
described the person who stole his wallet to the police as
wearing dark jeans and a dark jacket with a hood. Mr. Clarke did
not make any other statement that morning because the officers
were "looking to go home." Trial Transcript ("Tr.") 121.

Mr. Clarke picked petitioner out of a line-up and also
identified him in court as the person who stole his wallet at
knife-point. He had never seen petitioner before that night, and
he never received any of the stolen property back. Assistant
District Attorney ("ADA") Sligh's closing questions on direct
examination were as follows:

ADA Sligh: Have you ever been arrested?

Mr. Clarke: No.

ADA Sligh: Ever been convicted of crime?

Mr. Clarke: No.

Tr. 126-27. Prior to trial, petitioner's counsel had requested,
among other things, the arrest and conviction records of any
witnesses the State intended to call. The District Attorney's
office did not make any response to that request.

On cross-examination, when Mr. Clarke was asked how often he
was down in the area of the alleged crime, ADA Sligh objected. At sidebar the following
colloquy occurred:

ADA Sligh: I fail to see the relevance in whether Mr.
Clarke was in the area four times a week or five
times a week. I would like an offer of proof.
Certainly he's not going to say that he's in that
area, and his client lives there, and he saw his
client there, so it must be perhaps he was there to
buy drugs or something which is ridiculous.

Defense: That this man has been in the area on a
regular time, on a regular basis, known to the people
in the area, including the defendant.

The Court: He knows the defendant?

Defense: Yes, your honor.

Tr. 128-130. At that point defense counsel proceeded on the
record.

Defense: Approximately how many nights a week are you
in this vicinity of College Point Boulevard?

Mr. Clarke: Very rarely. But on Friday nights, the
guys I work with get together and they go to that bar
almost every Friday night.

Defense: That's the Candlewood Bar?

Mr. Clarke: Yes, Sir.

Defense: And you never buy drugs on that street; do
you sir?

Mr. Clarke: No, sir.

Defense: You do not use any controlled substances?

Mr. Clarke: No, sir.

Defense: You never used them?

Mr. Clarke: No, sir.

Defense: You don't know this defendant; do you?

Mr. Clarke: No, sir. Defense: Ever been in the projects before?

Mr. Clarke: No, sir.

Tr. 131-32. Mr. Clarke testified that he never told the police
or anyone else that petitioner was wearing a Ninja mask. Mr.
Clarke did not see petitioner take anything out of his car.
Petitioner did not have anything on his head when Mr. Clarke
found him in the car or during the chase, and Mr. Clarke never
told the police that there was anything on his head at that time.

Petitioner took the stand on his own behalf and testified as
follows: He did not rob anyone on October 17, 1987, but he had
been convicted of other crimes. He met Mr. Clarke in March of
1987 in one of the parks in the neighborhood and sold drugs to
him up until the time of the alleged robbery. Petitioner was
using crack and heroin at that time. He knew that Mr. Clarke
drove a 1972 Mustang because he had been in the car several times
and even to Mr. Clarke's home on one occasion, although he did
not go inside. He saw Mr. Clarke approximately three times a
week, mostly on weekends. He bought drugs that he sold to Mr.
Clarke, but sometimes he would substitute bread crumbs or grits
in the supposed vial of crack and keep the real drugs for
himself.

Petitioner saw Mr. Clarke on October 16, 1987, the day before
the alleged robbery, and sold him four vials filled with crack
and four vials filled with fake drugs. Mr. Clarke told petitioner
that some of the vials were not real and petitioner told him
"that's what I got." Petitioner knew Mr. Clarke as "Slim," and
Mr. Clarke knew him as "Screwgie." Tr. 176. Petitioner maintained
that he did not take Mr. Clarke's wallet, never wore any kind of
mask, and never threatened Mr. Clarke with a knife.

On cross-examination ADA Sligh asked about the details of all
of the arrests and convictions that petitioner mentioned on
direct examination including burglary, grand larceny and several
misdemeanors. He asked petitioner what the items were that he
stole for his petit larceny convictions and where he committed the crime of buying drugs for Mr. Clarke.
Petitioner testified that he was arrested for stealing wallets
and jeans when he was a drug addict and that he bought the drugs
for Mr. Clarke through a hole in the door of an apartment in the
projects.

In summation, defense counsel began by stating that petitioner
had admitted his criminal record and did not try to hide from the
facts of his life. Defense counsel compared Officer Cardo's
testimony that Mr. Clarke told him that he was robbed near his
car by a man wearing a Ninja mask with that of Officer Krien that
Mr. Clarke told him that he saw only one individual in his car,
he chased him, and the person stole his wallet at knife-point
inside one of the project buildings. Defense counsel also pointed
to the inconsistencies between Mr. Clarke's testimony and that of
both of the officers and how Mr. Clarke's story changed over
time. Counsel argued that these inconsistencies, petitioner's
knowledge of where Mr. Clarke lived and the car that he drove,
and the implausibility of Mr. Clarke's story, all provided
reasonable doubt that a crime had occurred.

In his summation, ADA Sligh stated that Mr. Clarke's coming out
of a topless bar at five in the morning was irrelevant and did
not give anyone the right to rob him. ADA Sligh said, "[i]f he
had been a criminal, which he tells us he has no criminal record,
if he had been a murderer, he would have been entitled to
protection from this defendant robbing him on that particular
morning." Tr. 240. ADA Sligh repeated that Mr. Clarke said that
he did not drink and that it was not unreasonable for someone who
did not drink to be in a bar at that hour of the morning. As to
petitioner's testimony, ADA Sligh told the jury:

But now ask yourselves, is Mr. Clarke capable of
creating this grand frame up? Is he capable? This is
what Mr. Clarke would have to do. He would have to
fool the first police officer on the scene, He would
have to, of course, get Detective Krein involved in
the plot. He would then have to go to the Grand Jury
and fool the Grand Jury and then he would have to . . . get by the district attorney's
office and, finally, ladies and gentlemen of the
jury, to make this plot work, Mr. Clarke would have
to get by you, the jury. He would have to make you
believe that the story that the Defendant is telling
you is not true. But most of all he will have to
convince you about the story. Now of all this, I tell
you for four or five vials of crack, that Mr. Clarke
is doing this because of four or five vials of crack?
That's unrealistic.

Tr. 244-45. ADA Sligh admitted that Officer Cardo's
testimony was confusing, but said that he was human
and that he confused the facts given to him by Mr.
Clarke. According to ADA Sligh, Officer Cardo made a
mistake, but Officer Krien was correct. ADA Sligh
said:

Look at Mr. Clarke's testimony. Does he appear to be
straight forward? Does he appear to you that he
responded to the questions that were asked of him?
Use that in determining Mr. Clarke's credibility. He
said he doesn't know the defendant. He says that he's
never seen him prior to the date of this particular
robbery . . . I won't ask you to disbelieve the
defendant because he has a lengthy criminal record. I
won't ask you to disbelieve because of that. Consider
it, yes, in determining credibility. But look at the
reasonableness of that statement that he took the
stand and told you this morning that's what you
ultimately want to consider. Credibility. Is it the
right man? Believability. You'll decide.

Tr. 249-51. After retiring for deliberations around noon, the
jury reached a guilty verdict on all three remaining
counts*fn1 shortly after 11:00 p.m.

Section 440.10 Proceedings

On October 28, 1993, petitioner filed an application pursuant
to Section 440.10 of the New York Criminal Procedure Law to
vacate his judgment of conviction based upon newly discovered evidence and requested a hearing on the application. In support
of his application, petitioner submitted an affidavit from Mr.
Clarke, as well as an affidavit from a fellow inmate who stated
that Mr. Clarke had falsely accused that inmate of robbery. Mr.
Clarke's affidavit stated: During the time of the alleged robbery
he had a serious cocaine and crack addiction as well as serious
alcohol dependency that made him behave irrationally; he lied
when he said that he had never been arrested or convicted,
because in fact he had been "arrested and/or convicted of"
burglary, possession of a weapon, criminal mischief, and car
stripping; he and petitioner, who had sold him drugs, had an
altercation over drugs, but petitioner never robbed him;
petitioner did not have a knife; and he never felt threatened by
petitioner. He further stated the reason he was giving this
affidavit now was that he had learned that petitioner was put in
jail on the basis of his lies, and he was very sorry for his
acts; he has since sobered up and has a new wife and baby. The
State submitted an affidavit from ADA Sligh, but did not run a
rap sheet on Mr. Clarke.

By order dated November 15, 1993, the trial court denied the
motion without a hearing, finding that the circumstances of the
execution of Mr. Clarke's recantation only served to enhance the
inherently suspect nature of recantations generally. The court
credited the affidavit of ADA Sligh, in which he stated that Mr.
Clarke never appeared to be under the influence of any
intoxicants during their meetings or at the time of his trial
testimony.

The Appellate Division affirmed the trial court's decision,
noting that "it is well-settled that `[t]here is no form of proof
so unreliable as recanting testimony.'" It added: "[t]he
witness's recantation, which merely impeaches his prior
testimony, probably would not change the result if a new trial
were granted, and therefore the court properly denied the
defendant's motion without a hearing." People v. Turner,
215 A.D.2d 703 (2d Dept. 1995) (internal citations omitted). The Court of Appeals denied leave to appeal. People v. Turner,
86 N.Y.2d 742 (1995).

Petitioner filed a second Section 440.10 motion based upon the
claim that the prosecutors knew or should have known about Mr.
Clarke's criminal record, but failed to reveal this information
to petitioner after he requested it, in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Petitioner also raised the claim
that Mr. Clarke's recantation was new evidence that tended to
show that petitioner's conviction was based on perjured testimony
and, therefore, was obtained in violation of due process of law.
The State submitted the same affidavit of ADA Sligh that it had
submitted on the first Section 440.10 motion, but again did not
run a rap sheet on Mr. Clarke. This motion was referred to
Justice Joseph G. Golia who, in a decision dated June 14, 1996,
denied the motion without a hearing. Justice Golia found that the
claim of newly discovered evidence concerning the recantation had
already been decided in the first Section 440.10 motion so he was
constrained to deny the motion as having been previously
addressed. Justice Golia held that there was no Brady violation
because the District Attorney was under no obligation under New
York law to check the possible criminal record of any witness
"absent a belief that the witness has a record or that the
witness has been untruthful in telling the prosecutor that he has
never been convicted." Supreme Ct., Queens County, June 14, 1996.
Decision on Motion to Vacate Judgment at 4. The court credited
the statement in ADA Sligh's affidavit that "Mr. Clarke told me
that he had never been arrested or convicted of a crime" and held
that:

In the case at bar, it was established at trial, and
affirmed on appeal, that the prosecution, in good
faith, was under the belief that Mr. Clarke did not
have a criminal record. Indeed, Mr. Clarke confirms
in his affidavit that he told the prosecution that he
did not have a criminal record. The prosecutor, who
had no affirmative duty to check whether Mr. Clarke
had a criminal record, did not do so. Consequently,
the prosecutor cannot be faulted for failing to give Brady materials to the
defendant that it did not possess and was under no
duty to discover.

Since it has not been established that the
prosecution had knowledge or even a suspicion of Mr.
Clarke's alleged criminal record, it is my opinion
the prosecution did not fail in their obligation to
provide the Brady materials requested.

Id. The Appellate Division denied leave to appeal on October
2, 1996.

The Habeas Corpus Proceedings

The initial pro se petition claimed that: the conviction was
based on perjured testimony in violation of due process;
petitioner's due process rights under Brady v. Maryland were
violated when the prosecutor failed to turn over Mr. Clarke's
criminal record after he had specifically requested it; and his
due process rights were violated by the denial of his right to
testify before the Grand Jury. The court denied respondent's
motion to dismiss the petition on statute of limitation grounds
and, on August 10, 2000, appointed counsel to represent
petitioner.

Following discovery and unsuccessful attempts to locate Mr.
Clarke, a hearing was held on April 9, 2003. Petitioner's wife,
Lametrous Turner, testified, credibly, regarding the
circumstances of the recantation as follows: Three or four years
after the trial she ran into Mr. Clarke in her neighborhood and,
after she told him that her husband had been sentenced to ten to
twenty years of imprisonment, Mr. Clarke told her that he had not
wanted to testify at trial because it was all made up, but the
District Attorney had a subpoena for him. Mr. Clarke told her
that he was prepared to testify that petitioner had not robbed
him and that what really happened was what petitioner had
testified to in court. Mrs. Turner contacted petitioner's former
attorney, Arthur Trakas, Esq., who drew up an affidavit which Mr.
Clarke signed in her presence. Petitioner submitted the trial transcripts, Mr. Clarke's extensive rap sheet which was provided
after this court ordered respondent to obtain it, the omnibus
motion made by petitioner's counsel requesting the criminal
record of the prosecution's witnesses, ADA Sligh's affidavit and
Mr. Clarke's affidavit. Respondent offered the testimony of ADA
Sligh.

The credible testimony of ADA Sligh established that he had
held various positions in the Queens District Attorney's office
since 1981. ADA Sligh acknowledged that paragraph 10 of the
omnibus motion made by petitioner prior to trial requested
information "whether any person to be called as a witness by the
prosecution is known, or, with due diligence could be known by
the prosecution to: have been charged with a crime, convicted of
a crime, or is or has been under psychiatric care. If the
prosecution is unwilling to make such inquiry of its witness, the
defense demands that it be supplied with the names and addresses
of such witnesses sufficiently in advance so that it may make its
own investigation." ADA Sligh testified that no response was made
to this request.

ADA Sligh knew prior to trial that petitioner's defense was
going to be that Mr. Clarke was bringing the charges in
retaliation for a bad drug deal. When ADA Sligh asked Mr. Clarke
about the drug allegations and about whether he knew petitioner,
Mr. Clarke denied both drug dealing and knowledge of Mr. Turner.
Other than asking Mr. Clarke, ADA Sligh took no additional steps
and made no inquiries of any kind to find out if Mr. Clarke had
any criminal arrest or conviction record prior to trial, nor did
ADA Sligh check Mr. Clarke's record when petitioner filed his
Section 440.10 motions based on Mr. Clarke's affidavit.

ADA Sligh testified that he could have asked a paralegal in his
office, who had the ability to access the central computers in
Albany, to run a rap sheet on Mr. Clarke by just submitting his name; fingerprints were not needed. ADA Sligh acknowledged that
Mr. Clarke's conviction record showed that he had at least six
arrests in Queens County prior to the trial in 1987. Information
on these arrests, in addition to being available through the
computers in Albany, was kept in docket books in the District
Attorney's office. He had requested rap sheets on other witnesses
if he had information that led him to believe that they had
criminal records. ADA Sligh also testified that he was not aware
whether police Officer Cardo ever requested rap sheets on
victims.

The Court: Then is it your understanding . . . that
in response to paragraph 10, that your office
responded as if it had knowledge that, in fact, Mr.
Clarke had not ever been arrested or convicted of a
crime, because it did not either provide a rap sheet
or provide the information that would allow the
defense to get that information?

ADA Sligh: I believe that is correct, Judge, that
upon information and belief, we believed that we were
not in possession of such information at that time,
and that if we came into possession of it at a time
before trial, we would turn it over. So, I think a
combination of those things.

Hearing Transcript ("Hearing Tr.") 37-38. According to ADA
Sligh, a bad drug deal was not an unusual defense; therefore,
there was no reason for him to believe that Mr. Clarke had a
criminal record.

In sum, the hearing evidence established that the prosecution,
by not responding to the defense motion, represented to the
defense that Mr. Clarke had no record.

Since Mr. Clarke did not appear at the hearing before this
court, petitioner does not pursue his claim that he was denied
due process of law because his conviction was based upon perjured
testimony as to the facts of the crime. Petitioner also does not
pursue the Grand Jury claim, which raises no federal
constitutional issue. Standard of Review

Under 28 U.S.C. § 2254:

(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court unless the adjudication of the
claim 

(1) resulted in a decision that was contrary to or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

Under 28 U.S.C. § 2254 (e)(1), a determination of a factual
issue made by a State court shall be presumed to be correct. The
applicant bears the burden of rebutting the presumption of
correctness by clear and convincing evidence.

Under Williams v. Taylor, 529 U.S. 362, 405-06 (2000), a
state court decision is "contrary to" clearly established Supreme
Court precedent if it "applies a rule that contradicts the
governing law set forth in [Supreme Court] cases" or "confronts a
set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a
result different from [Supreme Court] precedent." A state court
decision is "an unreasonable application of "clearly established
Supreme Court precedent if, from an objective standpoint, the
state court applied Supreme Court precedent unreasonably, not
simply incorrectly or erroneously. Williams v. Taylor, 529 U.S.
at 409.

Since in this case the state courts declined to hold an
evidentiary hearing, no presumption of correctness applies to the
state court factual "findings" under 28 U.S.C. § 2254(e)(1). See
Channer v. Brooks, 320 F.3d 185, 195 (2d Cir. 2003); Drake v.
Portuondo, 321 F.3d 338, 345 (2d Cir. 2003). See also Ortega v.
Duncan, 333 F.3d 102, 106 (2d Cir. 2003) (applying same
principle where the state court did hold hearing, but refused to make factual
findings). Since petitioner attempted to develop the record, but
was denied a hearing in the state court, this court was not
barred by Section 2254(e)(2) from conducting a hearing. Drake,
321 F.3d at 347.

The question then is whether the state court's rejection of
petitioner's Brady claim was "contrary to" or involved "an
unreasonable application of" federal law as determined by the
Supreme Court, under 28 U.S.C. § 2254 (d)(1), based upon the
facts as found by this court.

Discussion

Under Brady v. Maryland and its progeny, state and federal
prosecutors must turn over exculpatory impeachment evidence,
whether or not requested by the defense, where the evidence is
material to either guilt or punishment. See United States v.
Bagley, 473 U.S. 667, 676 (1985); United States v. Agurs,
427 U.S. 97, 107 (1976). Failure to do so results in a denial of due
process irrespective of the good or bad faith of the government.
Brady, 373 U.S. at 87. The scope of the prosecutor's
constitutional duty, and the defendant's constitutional right, is
defined retrospectively, by reference to the likely effect that
the suppression of particular evidence had on the outcome of the
trial. United States v. Coppa, 267 F.3d 132, 140 (2d Cir.
2001).*fn2 "Under Brady, an inadvertent non-disclosure has
the same impact on the fairness of the proceedings as deliberate
concealment." Stickler v. Greene, 527 U.S. 263, 288 (1999). The
clearly established law as of 1996, as recently summarized by the
Supreme Court, provides that "[t]here are three components of a
Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory or impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have
ensued." Id. at 280-82. A prosecutor can suppress evidence
within the meaning of Brady even if he acted in good faith and
even if the evidence is "known only to police investigators and
not to the prosecutor." Kyles v. Whitley, 514 U.S. 419, 438
(1995).

In Agurs, the Supreme Court distinguished three situations in
which a Brady claim might arise: first, where previously
undisclosed evidence revealed that the prosecution introduced
trial testimony that it knew or should have known was perjured;
second where the government failed to accede to a defense request
for disclosure of some specific kind of exculpatory evidence; and
third, where the government failed to volunteer exculpatory
evidence never requested or requested only in a general way.
Agurs, 427 U.S. at 103-107. Favorable evidence is material and
constitutional error results from its suppression "if there is a
reasonable likelihood that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different." Bagley, 473 U.S. at 682. "The jury's estimate of
the truthfulness and reliability of a given witness may well be
determinative of guilt or innocence, and it is upon such subtle
factors as the possible interest of the witness testifying
falsely that a defendant's life or liberty may depend." Napue v.
Illinois, 360 U.S. 264, 269 (1959).

In Giglio v. United States, 405 U.S. 150 (1972), the Supreme
Court applied the "due process criteria of Napue v. Illinois
. . . and Brady v. Maryland" to find that the government's
failure to disclose an alleged promise made to its key witness,
that he would not be prosecuted if he testified, violated the
defendant's due process rights. The Court determined that, even
though the government attorney who tried the case did not know of
the agreement when he elicited false answers on the witness
stand, "the Government's case depended almost entirely on
Taliento's testimony; without it there could have been no indictment and no evidence to carry
the case to the jury. Taliento's credibility as a witness was
therefore an important issue in the case and evidence of any
understanding or agreement as to a future prosecution would be
relevant to his credibility and the jury was entitled to know of
it." Giglio, 405 U.S. at 154-55. See Shih Wei Su v. Filion,
335 F.3d 119, 127 (2d Cir. 2003).

Here, petitioner specifically requested the conviction record
of the State's witnesses. It is undisputed that, by not
responding to that request, the prosecution was signifying that
Mr. Clarke had no record. In addition, the circumstances of the
alleged crime, at 5:00 a.m. outside a bar, and the ADA's
knowledge that the defense was that the alleged victim had made
up the robbery in retaliation for a bad drug deal, all pointed to
the need to check Mr. Clarke's record before offering him as a
witness, and indeed offering him as a witness without a record.
Other than the police officers, who testified only as to what Mr.
Clarke told them, Mr. Clarke was the only witness to the alleged
crime. Neither ADA Sligh, nor his partner, sought the requested
impeachment evidence from any police officer or investigator, or
ran a routine check for the presence of a criminal record.
Indeed, the State did not run a rap sheet on Mr. Clarke, despite
his affidavit in the Section 440.10 motions saying that he had a
record, until required to do so in this habeas corpus proceeding.

The information requested was readily available to the
prosecution had it made the most modest effort. Indeed, since
some of Mr. Clark's arrests took place in Queens County, records
of those arrests were available from the Queens County District
Attorney's office itself. As the Court of Appeals for the Second
Circuit recently held, saying it was applying established
principles of Supreme Court law, "before a prosecutor puts to the
jury evidence that a witness made no deal with the government, he
or she has a fundamental obligation to determine whether or not
that is so." Shih Wei Su, 335 F.3d at 127.

The respondent makes no argument that the defense was
insufficiently diligent in pursuing the issue of Mr. Clarke's
record. Any such argument would be without merit. See Shih Wei
Su, at 128 ("When a prosecutor says that there was no deal and
later elicits testimony from a witness denying the existence of a
deal, it would be an unreasonable application of federal law, as
determined by the Supreme Court, to fault the defendant for not
proceeding in his cross-examination on the assumption that the
prosecutor is a liar"). See also Banks v. Dretke, ___ U.S. ___,
124 S.Ct. 1256, 1275 (2004) ("Our decisions lend no support to
the notion that defendants must scavenge for hints of undisclosed
Brady material when the prosecution represents that all such
material has been disclosed.")

Without Mr. Clarke's testimony, there was no evidence that a
crime was even committed. His credibility was central to the
State's case. See United States v. Avellino, 136 F.3d 249,
256-57 (2d Cir. 1998) (noting cases in which impeachment evidence
was considered material where the witness in question supplied
the only evidence linking the defendant to the crime, or supplied
the only evidence of an essential element of the crime). Knowing
this, ADA Sligh elicited Mr. Clarke's absence of a criminal
record from him on the witness stand to bolster his credibility
and to discredit petitioner. ADA Sligh acknowledged to the trial
judge: "it's merely now a question of credibility and that
question should ultimately be resolved by the trier of fact, the
jury," and "ultimately it comes down to whether they believe Mr.
Clarke or believe the Defendant." Tr. 215. ADA Sligh asked
petitioner numerous questions about his own conviction record and
encouraged the jury to consider that record when determining
petitioner's credibility. Conversely, ADA Sligh noted Mr.
Clarke's lack of a criminal record. As the duty under Brady is defined retrospectively, under
these facts, the prosecutor's representation that Mr. Clarke had
no record, both to defense counsel and to the jury, when in fact
he did, leads to the conclusion there was a violation of due
process which resulted in a verdict unworthy of confidence.

In sum, petitioner has shown that "there is a reasonable
probability that had the evidence been disclosed to the defense,
the result of the proceeding would have been different."
Bagley, 473 U.S. at 682. Thus, I find that a Brady violation
under clearly established federal law as determined by the
Supreme Court has been established and that the trial court's
decision was an unreasonable application of federal law as
determined by the Supreme Court. Finally, whatever the applicable
harmless error standard is in this case, see Browne v. Keane,
355 F.3d 82, 90-92 (2d Cir. 2004); Drake, 321 F.3d at 347 and
n. 4, the Brady error was clearly not harmless.

In addition, since the Brady violation resulted in perjured
testimony being admitted at trial, I turn to whether, under
Agurs, the prosecutor knew or should have known that the
testimony he elicited was false, and if so, whether there is a
reasonable likelihood that the false testimony could have
affected the judgment of the jury. On this issue, Drake v.
Portuondo, 321 F.3d 338 (2d Cir. 2003), is instructive. There,
the defendant confessed to the shooting deaths of the two
victims, but claimed it was an accident. The sole issue at trial
was his intent. Subsequent to the trial, at which Drake was
convicted of second degree murder, defense counsel learned that
the expert witness called by the prosecutor had lied about his
credentials and indeed about the existence of his alleged area of
expertise, "piquerism." Drake moved to vacate his conviction
based upon newly discovered evidence that it was based on
perjured testimony, but the Section 440.10 court denied his
request for a hearing and decided that the record failed to
establish that the prosecution was aware or should have been aware of perjury introduced at petitioner's trial. The
Appellate Division affirmed. After the district court, relying on
the state court's determination, denied habeas corpus relief, the
Court of Appeals reversed and remanded the case to the district
court to allow discovery and to conduct a hearing, if it
determined that one was necessary, on whether the prosecutor knew
or should have known of the perjury introduced at trial. In
Drake, the prosecutor made no independent inquiry into the
expert witness's background and relied entirely on the
recommendation of a dentist to vouch for the credentials of the
prosecution's chief witness on aberrant psychology. The
prosecutor conceded that the expert witness's testimony was meant
to bolster what he perceived as the weakness of the State's case
on intent, the sole issue at trial. The Second Circuit concluded
that, if, at a hearing in the district court, "Drake can
successfully establish that the prosecution knew or should have
known of the perjured testimony, he may be able to establish a
`reasonable likelihood that the false testimony could have
affected the judgment of the jury.' Agurs, 427 U.S. at 103."

This case initially presented two issues involving perjured
testimony admitted at trial. The first, which petitioner does not
pursue, is that Mr. Clarke lied about the facts of the crime and
whether a crime was even committed. The second, which is
intertwined with the Brady claim discussed earlier, is that Mr.
Clarke lied about his conviction record. It is now undisputed
that Mr. Clarke's testimony about his record was false and
therefore that perjured testimony was presented to the jury. Had
the prosecutor fulfilled his Brady obligation, he not only
would have known that Mr. Clarke had a record, he also would have
known that Mr. Clarke had lied to him about his record.
Therefore, there is a Brady violation not only for failure to
turn over material impeachment evidence, but also for eliciting
testimony that the prosecutor should have known was false. Since
I have already found that there is a reasonable likelihood that,
had the evidence been disclosed to the defense, the result of the proceeding would have been different,
there is no difficulty in finding that there is a reasonable
likelihood that the false testimony could have affected the
judgment of the jury.

While the Second Circuit in Drake referred to the "should
have known" language in Agurs as "dictum," and noted that the
Second Circuit had not yet drawn the contours of that phrase, it
sent the case back to the district court for a hearing and
stated: "If Drake can show that the prosecution knew (or should
have known) about Walter's perjured testimony, relief may be
justified." Drake, 321 F.3d at 347. In this case, once it is
accepted that a Brady violation occurred in the prosecutor's
failure to disclose Mr. Clarke's prior record, concluding that
the prosecutor should have known of the perjury requires no
drawing of subtle lines; it is obvious.

To clarify, this court holds that there has been a violation of
due process based upon Brady v. Maryland for failure to turn
over material impeachment evidence; that holding is sufficient in
itself to require relief. In addition, on the facts of this case,
there has also been a violation of due process based upon the
admission of perjured testimony which the prosecutor should have
known was false.

Conclusion

The petition for a writ of habeas corpus is granted, and the
judgment of conviction is vacated.

SO ORDERED.

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